persons generally, or several items of charges at different times against the other party, in the same book.

Second, It must be shown, by the party's oath, or otherwise, that they are his books of original entries.

Third, It must be shown, in like manner, that the charges were made at or near the time of the transaction therein entered, unless satisfactory reasons appear for not making such proof.

Fourth, The charges must also be verified by the party or the clerk who made the entries, to the effect that they believed them just and true, or a sufficient reason must be given why the verification is not made.

writing.

SEC.. 344. Every private writing, except a last will Every private and testament, after being acknowledged or proved and certified in the manner prescribed for the proof or acknowledgment of conveyances of real property, may be read in evidence without further proof.

is competent.

SEC. 345. The judge of the court is a competent, Judge of const witness for either party, and may be sworn upon the trial. But in such a case it is in his discretion to order the trial to be postponed or suspended, and to take place before another judge.

test by a notars

SEC. 346. The usual protest by a notary public, The ual prowithout proof of his signature or a notarial seal, is evidence public. of the dishonor and notice of a bill of exchange or promissory note.

TITLE XVIII.

Article 1-Means of Producing Witnesses.

whom served.

SEC. 347. The clerks of the several courts, and judges Babpoena, by of the probate courts, shall, on application of any person having a cause or any matter pending in the court, issue a Bubpoena for witnesses under the seal of the court, inserting all the names required by the applicant, in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or by the party, or any other person. When a subpoena is not served by a sheriff, coroner or constable,

proof of the service shall be shown by the affidavit; but no costs of service of the same shall be allowed, except when served by an officer.

SEC. 348. The subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a witness; and it may contain a clause directing the witness to bring with him any book, writing, or other thing under his control, which he is bound by law, to produce as evidence.

SEC. 349. When the attendance of a witness, before any officer authorized to take depositions is required, the subpoena shall be issued by the officer.

SEC. 350. The subpoena shall be served either by reading, or by copy delivered to the witness, or left at his usual place of residence; but such copy need not contain the name of any other witness.

SEC. 351. A witness shall not be obliged to attend for examination on the trial of a civil action, except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpoena is served upon him.

SEC. 352. A witness may demand his traveling fees, and fee for one day's attendance, when the subpoena is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpoena. The fact of such a demand and non-payment shall be stated in the

return.

SEC. 353. Disobedience of a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required.

SEC. 354. When a witness fails to attend in obedience to a subpoena, (except in case of a demand and failure to pay his fees,) the court or officer before whom his attendance is required, may issue an attachment to the sheriff, coroner or constable of the county, commanding him to arrest and bring the person therein named before the court or officer, at a

time and place to be fixed in the attachment, to give his testimony, and answer for the contempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum shall be fixed in which the witness may give an undertaking with surety for his appearance. Such sum shall be indorsed on the back of the attachment, and if no sam is so fixed and indorsed, it shall be one hundred dollars. If the witness be not personally served, the court may, by a rule, order him to show cause why an attachment should not issue against him.

for contempt.

SEC. 355. The punishment for the contempt mentioned Punishment in section three hundred and fifty-three, shall be as follows: When the witness fails to attend in obedience to the subpœna, (except in case of a demand and failure to pay his fees,) the court or officer may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or offic r may fine the witness in a sum not exceeding fifty dollars nor less than five dollars, or may imprison him in the county jail, there to remain until he shall submit to be sworn, to testify, or give his deposition. The fine imposed by the court shall be paid into the county treasury, and that imposed by the officer shall be for the use of the party for whom the witness was subpoenaed. The witness shall also be liable to the party injured, for any damages occasioned by his failure to attend, or his refusal to be sworn, to testify or give his deposition.

SEC. 356. A witness so imprisoned by an officer before whom the deposition is being taken, may apply to a judge of a supreme court, district court, or probate court, who shall have power to discharge him if it appears that his imprisonment is illegal

SEC. 357. If a witness conceal himself, or in any other mauner attempt to avoid being personally served with a subpoena, any sheriff or constable, having the subpoena, may use all necessary and proper means to serve the same, and for that purpose may break into any building, or other place where the witness is to be found, having first made known his business and demanded admittance.

Witness may apply to judgo.

If a witness conceal himself.

Commitment of a witness.

Required to be produced.

While deposi

SEC. 358. Every attachment for the arrest or order of commitment to prison of a witness by a court or officer, pursuant to this title, must be under the seal of the court or officer, if he have an official seal, and must specify particu larly the cause of the arrest or commitment, and may be directed to the sheriff, coroner, or any constable of the county where such witness resides, or may be at the time, and shall be executed by committing him to the jail of such county, and delivering a copy of the order to the jailer.

SEC. 359. A person confined in any prison in this territory, may, by order of any court of record, be required to be produced, for oral examination in the county where he is imprisoned; but in all other cases, his examination must be by deposition.

SEC. 360. While a prisoner's deposition is being taken, then being taken. he shall remain in the custody of the officer having him in charge, who shall afford reasonable facilities for the taking of the deposition.

Witness not liable.

May demand bie foca

Shall be sworn

Continuance.

SEC. 361. A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning or attending in obedience to the subpoena.

SEC. 362. At the commencement of each day after the first day, a witness may demand his fees for that day's attendance in obedience to a subpoena, and if the same be not paid, he shall not be required to remain.

SEC. 363. Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering the oath shall be such as is the most binding upon the conscience of the witness.

SEO. 364. In addition to the above remedies, if a party to a suit in his own right, on being duly subpoenaed, fail to appear and give testimony, the other party may, at his option, have a continuance of the cause, as in cases of other witnesses, and at the cost of the delinquent.

ARTICLE II.

Mode of Taking Testimony of Witnesses.

be taken.

SEC. 365. The testimony of witnesses may be taken in Testimony may three modes.—

First, By affidavit.

Second, By deposition.

Third, By oral examination.

SEC. 366. An affidavit is a written declaration under Affidavit. oath, made without notice to the adverse party.

SEC. 367. A deposition is a written declaration, under Deposition. oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine; or, upon written interrogatories.

SEC. 368. An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.

Affidavit.

Oral examina

tion.

Affidavit may

SEC. 369. The affidavit may be used to verify a pleading, to prove the service of a summons, notice, or other be used. process in the action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, and in any other case permitted by law.

SEC. 370. An affidavit may be made in and out of this territory, before any person authorized to take depositions, and must be authenticated in the same way, except as provided in section one hundred and twenty-one.

ARTICLE III.
Depositions.

SEC. 371. The depositions of any witness may be used

only in the following cases:

First, When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom.

Second, When from age, infirmity or imprisonment, the witness is unable to attend the court, or is dead.

Third, When the testimony is required upon a motion, or

May be made

Depositions may be used.